Reproductive Freedom on the Docket

Planned Parenthood Southwest Ohio Region et al. v. Hodges et al.

Status:

Case Dates:

Tuesday, 1 September, 2015 - ongoing

Facts:

Ohio law requires that all surgical abortions must be performed in ambulatory surgical facilities that maintain a written transfer agreement with a local hospital. In its 2013 biennial budget bill, H.B. 59, Ohio tightened these restrictions by preventing abortion clinics from obtaining the necessary transfer agreement from public hospitals and by prescribing difficult requirements for abortion centers that seek a variance of the written transfer agreement requirement.

In its 2015 biennial budget bill, H.B. 64, Ohio added additional, and even more onerous, provisions: a facility’s license would be automatically suspended if the Ohio Department of Health either denies – or simply fails to act on – a variance application within 60 days. The automatic suspension provision would have taken effect on September 29, 2015 and would have put facilities at risk of being forced to shut down nearly immediately with no opportunity for a hearing.

Legal Theory:

The provisions of H.B. 59 and H.B. 64 in question violate women’s rights to liberty and privacy under the Fourteenth Amendment because they impose an undue burden on women’s right to terminate their pregnancies, and they violate the right to due process because they endow private parties with standardless, unreviewable authority. . Further, these provisions violate abortion clinics’ right to equal protection by treating them differently from other similarly situated parties, and they violate clinics’ due process rights by denying them procedural protections. Finally, these provisions violate the One-Subject Rule under the Ohio Constitution, which prohibits logrolling, or the practice of injecting unrelated provisions into a single bill.

Status:

We filed our Complaint and Motion for Preliminary Injunction on September 1, 2015 in the United States District Court for the Southern District of Ohio. Plaintiffs are Planned Parenthood Southwest Ohio Region (“PPSWO”) and Women’s Med Group Professional Corporation. We serve in an of-counsel capacity for Women’s Med Group.

Our Complaint seeks a declaratory judgment that the provisions of H.B. 59 and H.B. 64 in question are facially unconstitutional as applied to our plaintiffs, and seeks a permanent injunction preventing Defendant Hodges from enforcing these provisions. Our Motion for Preliminary Injunction sought to prevent Defendant Hodges from suspending the plaintiff facilities’ licenses when the relevant provisions of H.B. 64 were to have gone into effect on September 29, 2015.

On September 30, 2015, the Court issued a Temporary Restraining Order preventing the state from closing PPSWO’s facility until October 13. On October 13, 2015, our Motion for Preliminary Injunction was granted, preventing the Ohio Department of Health from enforcing the provisions of H.B. 64 in question and from suspending PPSWO’s license.

On November 2, 2015, Defendants UCMC and UC Health filed a motion to dismiss; our Response was filed on December 11, and Defendants filed a reply on December 31. On December 11, we also filed an unopposed motion to amend the complaint to provide additional factual support for our claims and to clarify the relief requested. On January 13, 2016, our Motion to Amend the Complaint was granted, and Defendants’ Motion to Dismiss was denied as moot. On January 15, 2016 we filed our amended Complaint and Defendants answered on January 29, 2016. Defendants filed a motion on February 1, 2016 to dismiss Defendant UC Health for lack of standing. After an order granting us an extension, we filed our opposition to the motion to dismiss on April 7, 2016. Defendants replied on April 25. On July 14 we filed a motion for extension of time to amend the complaint, which was granted on July 19.

On September 21, 2016 the judge granted Defendants’ February 1, 2016 motion to dismiss the claims again UCMC and UC Health. We then filed our amended complaint on October 7, and Defendants filed their answer on October 17.

We had begun discovery under a schedule that would have culminated in a bench trial starting on December 1, 2017. On May 17, 2017, however, Defendants filed a motion to stay discovery and suspend the case schedule pending the Ohio Supreme Court’s decision in Capital Care Network of Toledo v. State of Ohio Department of Health, an appeal of a 2016 decision blocking the State from closing Toledo’s last abortion clinic because the clinic lacked a written transfer agreement. On June 6, the Court held a status conference. On June 20, the court entered an order vacating the December 1 trial date. However the court did not suspend the discovery requests that were then pending, and its order expressly permitted the parties to conduct limited discovery, including depositions, by agreement.

On February 6, 2018, the Ohio Supreme Court issued a decision in Capital Care Network, ruling that the Ohio Department of Health was within its rights to revoke Capital Care’s license because the clinic lacked a written transfer agreement. (Capital Care subsequently entered into a written transfer agreement, approximately one week later, with ProMedica Hospital of Toledo to provide emergency medical care. This may prevent the clinic from having to close.)

On March 6, 2018, the Court entered a new calendar order in our case. We filed a Motion to Compel the testimony of the Governor’s Chief Counsel on March 12, 2018. Defendants filed their response on March 22, and the Court held a hearing on this briefing on April 4. On April 19 the Court denied our Motion.

We are proceeding with discovery including taking and defending depositions and seeking and producing documents; we are also identifying potential experts. Initial disclosure of experts and their reports is due August 1; expert rebuttal reports are due November 1; expert discovery is to be completed by November 30; a status/final pretrial conference is set for November 30; and a bench trial is set for February, 2019.

Currently the parties are involved in several discovery disputes. On July 13 the parties each filed a series of discovery motions. The Court held a hearing on all of these motions on August 22 and we await an order.